Opinion
W.C. Nos. 4-240-847 and 4-283-926
August 30, 1999.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which denied her petition to reopen on the grounds of mistake. We set aside the order, and remand the matter for entry of a new order.
The claimant suffered a compensable low back injury on April 30, 1994, which was treated by Dr. Olson. Dr. Olson placed the claimant at maximum medical improvement (MMI) on November 23, 1994, with 8 percent whole person impairment. The respondents filed an uncontested Final Admission of Liability consistent with Dr. Olson's permanent impairment rating.
The claimant suffered a second work-related low back injury on August 25, 1995, which was treated by Dr. Oba. The respondents filed a Final Admission of Liability dated December 12, 1996 for medical benefits only. The claimant did not timely object.
Relative to the August 1995 injury, Dr. Oba had opined in a report dated July 16, 1996, that "disability is likely," but the "severity" was unknown. On October 25, 1996, Dr. Oba placed the claimant at MMI and released the claimant from treatment, but did not rate permanent medical impairment. Instead, Dr. Oba indicated that "no disability or worsening impairment will be applied for now." Dr. Oba subsequently testified that he did not rate the claimant's impairment in October 1996 because the claimant's condition was worsening and he was trying to save the insurer the cost of multiple ratings and functional capacity evaluations. (Oba depo. p. 24). Dr. Olson opined that the claimant suffered no permanent medical impairment from the 1995 injury.
The claimant petitioned to reopen the claim on grounds that Dr. Oba mistakenly failed to rate permanent medical impairment at the time of MMI and that the respondents' Final Admission of Liability erroneously failed to admit liability for permanent partial disability benefits. The respondents refused voluntarily to reopen the claim.
The ALJ determined that Dr. Oba and Dr. Olson were the "primary treating physicians" for the 1995 industrial injury. The ALJ also found Dr. Olson's opinions consistent with the medical report of Dr. Davis and the claimant's testimony that the "major source" of her symptoms was the 1994 injury. Further, the ALJ determined that Dr. Oba found no impairment from the 1995 injury. Under these circumstances, the ALJ determined the claimant failed to prove there was a mistake or error in Dr. Oba's failure to include a permanent medical impairment rating for the 1995 injury.
On review, the claimant contends, inter alia, that there is no evidence she received the respondents' 1996 Final Admission, and therefore, she was not required to "reopen" the claim to litigate the issue of permanent partial disability. In support, the claimant relies on her testimony that she didn't "remember receiving" the Final Admission. We disagree.
Section 8-43-203(2)(b)(II), C.R.S. 1998, provides that a claimant's failure to object to a Final Admission of Liability within sixty days of the certificate of mailing closes the claim concerning all admitted liability. However, the claimant is entitled to notice of the Final Admission before the failure to object triggers a closure. Bowlen v. Munford, 921 P.2d 59 (Colo.App. 1996).
Contrary to the claimant's argument, the record contains the copy of a Final Admission of Liability (although nearly illegible) with a certificate of mailing to the claimant's home address on December 12, 1996. The claimant does not dispute that the Final Admission was mailed to the correct address. Further, the claimant did not specifically deny receiving the Final Admission. The claimant merely stated that she did not "remember receiving" the Final Admission. (Tr. p. 12). This testimony does not compel a finding that the claimant did not receive the admission. See Olsen v. Davidson, 142 Colo. 205, 350 P.2d 338 (1960) (regarding presumption of receipt). Under these circumstances, the record supports the ALJ's finding that the claimant's failure timely to object to the Final Admission automatically closed the issue of permanent partial disability subject to the reopening provisions in § 8-43-303, C.R.S. 1998.
The claimant also contends the ALJ erroneously found that Dr. Olson was a "primary treating physician" for the 1995 industrial injury. The claimant contends the record contains no evidence Dr. Olson ever "treated" the 1995 industrial injury.
The respondents do not cite any specific evidence which supports the ALJ's finding, and contend that the ALJ's error, if any, was harmless because it is undisputed that Dr. Oba was a "primary treating physician," and the ALJ was not persuaded that Dr. Oba found any permanent medical impairment from the 1995 injury. We reject the respondents' argument.
Under § 8-43-303, an ALJ may reopen any award on the grounds of error or mistake of law or fact. State Compensation Insurance Fund v. Industrial Commission, 80 Colo. 130, 249 P. 653 (1926); Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996). The power to reopen is "permissive," and therefore, we may not interfere with the ALJ's order unless it constitutes an abuse of discretion. Renz v. Larimer County School District Poudre R-1, supra; Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986). An abuse of discretion is shown if the ALJ's is not supported substantial evidence. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
We are unable to locate any evidence in the record that Dr. Olson treated the 1995 injury. In fact, Dr. Olson admitted that Dr. Oba treated the injury. (Olson depo. p. 20). Dr. Oba testified to the same, and consequently, Dr. Oba opined that he was in a better position than Dr. Olson to determine the claimant's condition as of 1996. (Oba depo. p. 46).
Dr. Olson did not examine the claimant for the 1995 injury until November 1997. In a letter dated November 13, 1997, the respondents requested that the claimant submit to an examination by Dr. Olson for the 1995 injury. The letter did not designate Dr. Olson as a treating physician, nor did the letter authorize any treatment. Under these circumstances, the ALJ's characterization of Dr. Olson as a "primary treating physician" or even a "treating physician" is erroneous.
The ALJ expressly relied on Dr. Olson's opinions to find that the claimant failed to prove there was a "mistake or error" in Dr. Oba's failure to include a permanent medical impairment rating for the 1995 industrial injury. Therefore, we cannot say the ALJ's error is harmless. Further, it is unclear what weight the ALJ would have afforded Dr. Olson's opinions had she recognized that Dr. Olson was not a "treating" physician and was actually the respondents' independent medical examiner.
Moreover, Dr. Oba's testimony is subject to conflicting inferences. In the absence of the ALJ's erroneous finding concerning Dr. Olson, we are unable to ascertain how the ALJ would have resolved the conflicts. Therefore, we remand the matter to the ALJ for the entry of a new order concerning the claimant's petition to reopen which is consistent with the record.
IT IS THEREFORE ORDERED that the ALJ's order dated July 23, 1998, is set aside and the matter is remanded to the ALJ for a new order as indicated above.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean
________________________________ Dona Halsey
Copies of this decision were mailed August 30, 1999 the following parties:
Myrna Kay Rankin, 2115 South Drive, Pueblo, CO 81008 Colorado State Psychiatric Hospital, 1600 W. 24th St., Pueblo, CO 81003-1411
Curt Kriksciun, Colorado Compensation Insurance Authority (Interagency Mail)
Larry D. Saunders, Esq., 125 W. "B" St., Pueblo, CO 81003 (For Claimant)
Herbert S. Schiff, Esq., 111 S. Tejon St., Ste. 700, Colorado Springs, CO 80903 (For Respondents)
BY: le